For many individuals and couples, surrogacy provides a life-changing route to parenthood. However, while medical advances and changing societal attitudes have made surrogacy more common, the legal framework surrounding surrogacy in England and Wales remains complex.
As Surrogacy Week draws to a close, our Family Law team considers the implications of recent Family Court decisions and the wider legal issues intended parents should understand when exploring surrogacy in the UK or overseas.
Recent Family Court decisions, including PP v QQ [2026] EWFC 172, have highlighted that, despite careful planning, intended parents can still encounter unexpected legal issues surrounding parenthood, parental responsibility and the acquisition of legal status following a child’s birth.
As a result, obtaining specialist legal advice at an early stage is often just as important as making practical and medical arrangements.
Surrogacy and Legal Parenthood Are Not the Same Thing
One of the most common misconceptions surrounding surrogacy is that the intended parents automatically become the child’s legal parents upon birth. In England and Wales, this is not the case.
The woman who gives birth to the child will generally be recognised as the child’s legal mother, regardless of genetic connection. Depending on the circumstances, her spouse or civil partner may also acquire legal parental status. Intended parents must then take further legal steps to become the child’s legal parents.
This distinction can come as a surprise to many families and demonstrates why the legal aspects of surrogacy should be considered from the outset rather than after a child is born.
The Importance of a Parental Order
For many intended parents, a Parental Order is the preferred route to securing legal parenthood.
A Parental Order extinguishes the surrogate’s legal status as a parent and transfers legal parenthood to the intended parent or parents. It also provides long-term certainty for the child and family unit.
However, obtaining a Parental Order is not automatic. The court must be satisfied that a number of statutory requirements have been met, and complications can arise where those requirements are not fulfilled.
The case of PP v QQ [2026] EWFC 172, demonstrates how significant those complications can be. In this case, the intended parents entered into an international surrogacy arrangement, believing that one of them was genetically related to their twins. Following the children’s birth, DNA testing revealed that neither intended parent was biologically related to the twins. As a result, they were unable to satisfy the statutory requirements for a Parental Order and instead had to pursue adoption proceedings to secure legal parenthood.
International Surrogacy Brings Additional Considerations
An increasing number of intended parents explore surrogacy arrangements overseas. This may be due to availability, cost, waiting times or differences in regulatory frameworks.
While many international arrangements proceed successfully, they often introduce a further layer of legal complexity.
Different jurisdictions take very different approaches to surrogacy. Arrangements that are lawful and straightforward in one country may create unexpected difficulties when the intended parents seek to establish legal parenthood in England and Wales. Questions can arise regarding:
- Parentage and legal status.
- Immigration and nationality.
- Fertility treatment records.
- Consent documentation.
- The requirements for obtaining a Parental Order in England and Wales.
PP v QQ [2026] EWFC 172 illustrates how complications can arise where overseas fertility treatment and surrogacy arrangements do not align with the requirements of English law. This serves as a reminder that intended parents should undertake thorough due diligence before entering into overseas arrangements and ensure they understand how English law will apply once the child is born.
What Happens If a Parental Order Is Not Available?
Although a Parental Order is often the preferred route, it is not always available.
Where legal difficulties arise, the court may need to consider alternative arrangements to ensure the child’s welfare and long-term security. Depending on the circumstances, this may involve adoption proceedings or other applications relating to parental responsibility and care arrangements.
Importantly, the court’s paramount consideration will always be the welfare of the child. The Family Court has consistently demonstrated a pragmatic approach where unexpected situations arise, seeking solutions that provide stability and certainty for the children involved.
Is Surrogacy Law Keeping Pace?
Surrogacy law continues to evolve and there have been ongoing discussions about reform to better reflect modern family structures and advances in reproductive technology.
However, until any legislative changes are implemented, intended parents must continue to navigate a legal framework that was not designed with many modern surrogacy arrangements in mind. This means careful planning remains essential.
Looking Ahead
Surrogacy can be an incredibly positive route to creating a family, but it is also an area where the legal position can be significantly more complicated than many people expect.
Recent Family Court decisions have shown that even where intended parents act entirely in good faith and believe all necessary arrangements have been put in place, unexpected issues surrounding genetic parentage, fertility treatment records and overseas clinic procedures can still create significant legal obstacles
Whether arrangements are being made in the UK or overseas, obtaining legal advice at an early stage can help intended parents understand their rights, anticipate potential challenges and ensure that appropriate steps are taken to secure legal parenthood following a child’s birth.
As recent cases have shown, even where everyone involved acts with the best of intentions, unexpected complications can arise. Understanding the legal framework from the outset can help provide certainty, reduce stress and ultimately protect the interests of both parents and children.
If you are considering surrogacy, whether in the UK or abroad, seeking specialist family law advice before entering into arrangements can help ensure you fully understand the legal implications and options available to you.
For more information, please contact...
Catherine Lowther
Head of Family
Catherine Lowther is Head of Family and a Senior Managing Associate at Swinburne Maddison. She joined the firm as a Trainee Solicitor in 2014,…
